This overview was developed from Appendix B of the Council's Better Decisions Report (1995). That appendix was prepared for the Council by John McMillan, then Senior Lecturer in Law (now Reader in Law) at the Australian National University. It was subsequently used as part of the Council's submission to the Senate Legal and Constitutional Legislation Committee's review of the role and function of the Administrative Review Council.

Scope and Purposes of the Commonwealth System of Administrative Review

Introduction

1. Expressed in its simplest form, administrative review has a dual purpose:

to improve the quality, efficiency and effectiveness of government decision-making generally; and

to enable people to test the legality and the merits of decisions that affect them.

2. A person whose interests are affected by a government (administrative) decision can challenge that decision in a court (such as the Federal Court), an administrative tribunal (such as the Administrative Appeals Tribunal), or through an investigative agency (such as the Commonwealth Ombudsman). The lessons learned through those processes can, in turn, improve future government decision-making.

3. The Council views the following as the benefits of administrative review:

through the provision of feedback to decision-makers, administrative review improves the quality of administration;

it provides a mechanism for ensuring that the Government acts within its lawful powers;

it provides a mechanism for achieving justice in individual cases; and

it contributes to the accountability system for government decision-making.

4. The rationale for the particular means of testing government decisions established in Australia from the mid-1970s is discussed under the heading 'Origins of the Commonwealth system of administrative review'. That discussion is followed by a description of the elements of the Commonwealth administrative review system. The summary immediately below, of the scope of administrative review, is of a more general and introductory nature.

A means of testing government decisions

5. In essence, there are five formal means by which a person may directly test a decision of a government agency. They are:

Judicial review

6. The purpose of a judicial review action is to test the lawfulness of a government decision. A decision is unlawful if it breaks one of the criteria that are defined in section 5 of the Administrative Decisions (Judicial Review) Act 1977 ('AD(JR) Act'). Examples include: a breach of natural justice; making a decision that was unauthorised; committing an error of law; or, taking an irrelevant matter into account. When a judicial review action is successful, it is usual for the Federal Court to quash the decision, or to refer it back to the decision-maker for further consideration. Ordinarily, it is not part of judicial review for the Court to substitute a new decision, or to award compensation to an aggrieved person. Accompanying a right of review under the AD(JR) Act is, in the normal course, a right to a written statement of the reasons for the decision that is the subject of review.

7. There are other methods besides the AD(JR) Act which also enable judicial review of Commonwealth decisions. They include review by the High Court in its original jurisdiction conferred by section 75(v) of the Constitution, and review by the Federal Court under section 39B of the Judiciary Act 1903. Both methods enable review of decisions of Commonwealth officers.

Merits review

8. Merits review of Commonwealth decisions is chiefly undertaken by administrative tribunals. The purpose of a merits review action is to decide whether the decision which is being challenged was the 'correct and preferable' decision.1 If not, a new decision can ordinarily be substituted. The process of merits review will typically involve a review of all the facts that support a decision.

9. The principal merits review tribunal is the Administrative Appeals Tribunal ('AAT'). It has a general jurisdiction to review administrative decisions in areas as diverse as: social security; taxation; veterans' affairs; employees' compensation; freedom of information; and, occupational licensing.

10. Other merits review tribunals include those with a specialist jurisdiction, such as: the Social Security Appeals Tribunal ('SSAT'), the Veterans' Review Board ('VRB'), the Migration Review Tribunal ('MRT'), and, the Refugee Review Tribunal ('RRT').

Administrative investigation

11. Broadly stated, the function of the Commonwealth Ombudsman is to investigate whether there has been defective administration within a Commonwealth agency. It follows that the Ombudsman investigates not only decisions, but also administrative activity—whether, for example, a decision has been made expeditiously, and has been explained adequately. If defective administration has occurred, the Ombudsman can recommend that appropriate corrective action be taken.

12. Other Commonwealth agencies may have an investigative function that is comparable to that of the Ombudsman. For instance, whether Commonwealth administrative activity complies with human rights, anti-discrimination or privacy standards can be the subject of investigation by a Commissioner, under the aegis of the Human Rights and Equal Opportunity Commission. In some areas, these officers have determinative powers and can award compensation.

Internal review

13. Internal review is the process in which original agency decisions are reviewed on their merits, within the responsible government agency. An internal review officer can usually substitute a new decision, if the decision under review is found to be defective on matters of law, the merits or administrative process. In some areas of government administration there is now a formal system for the internal review of agency decisions. The internal review system in these areas is created and regulated by legislation, in the same way as other review methods. Even where there is no statutory requirement, it is common for internal review systems to be established on an administrative basis within government agencies. These arrangements are often outlined in the service charter of the agency.

Damages

14. Compensation for defective administration can be awarded in limited circumstances defined by common law doctrines, such as: negligence; negligent misstatement; false imprisonment; and, conversion. An action for damages against the Commonwealth would usually be heard by a State Supreme Court or, less commonly, by the Federal Court or the High Court.

Openness and accountability

15. Other aspects of administrative law operate in a different way to protect individuals and to ensure the lawfulness and accountability of decision-making. There are, in particular, a number of mechanisms that enable members of the public to obtain documents, and information about government administrative processes.

16. The principal mechanism is the Freedom of Information Act 1982 ('FOI Act') which enables a person to obtain access to government documents. There is a similar right of access to documents under the Archives Act 1983,which also imposes obligations upon agencies concerning the maintenance and storage of government records.

17. A written statement of the reasons for an administrative decision may be obtained under the AD(JR) Act, or in relation to decisions that are the subject of review by the AAT.

18. These aspects of administrative law have assisted in ensuring the integrity of government, and have enabled people affected by government decisions to ascertain why they have been dealt with in a particular way.

Other aspects of administrative review

19. The system of administrative review is, however, more complex, integrated and overlapping than the description that has just been given. For instance, there is a vertical relationship between some review agencies, an example being a right to appeal from the SSAT to the AAT, and from there to the Federal Court.

20. Within the scope of administrative review, other institutions and mechanisms that audit and scrutinise the legality, integrity, and efficiency of government decision-making could also be included: examples include the Auditor-General, parliamentary committees, and (particularly in the Australian States) the anti-corruption agencies.

21. A Legislative Instruments Bill, which has been suggested by the Council in its report, Rule Making by Commonwealth Agencies,2 would introduce a scheme to improve scrutiny of Executive law-making under statutory delegation. The exercise of delegated legislative powers often occurs close to the demarcation between Executive and legislative power, and it is in the public interest to ensure that accountability for that exercise of power is as clear as it can be. The proposed scheme would also improve public access to delegated legislation.

Origins of the Commonwealth System of Administrative Review

The Kerr Committee

22. The present Commonwealth system of administrative review can be traced to a report in 1971 of the Commonwealth Administrative Review Committee ('Kerr Committee'—named after the Chairman Sir John Kerr, then a member of the Commonwealth Industrial Court). The major features of the present system—the framework for judicial review, the AAT, the Ombudsman, and, indeed, the Administrative Review Council—stem largely from the recommendations of that Committee. The significance of the Committee's work, which is described more fully below, is appreciated best in the historical and administrative context in which the Committee reported.

23. Judicial review of administrative action has been possible from the inception of the Commonwealth. The inherent right of superior courts to conduct judicial review is an aspect of the common law developed in England, and adopted in Australia. Recognition of this supervisory jurisdiction is contained in section 75(v) of the Constitution,3 which empowers the High Court to issue against an officer of the Commonwealth the remedies of mandamus, injunction and declaration. Each of those remedies can be used to ensure the legality of government administrative activity.

24. In the earlier decades after Federation there was not, however, an active field of administrative law litigation. Costs, government secrecy, legal technicalities, and other factors combined to make judicial review a difficult and hazardous process.4

25. Administrative review tribunals had, however, been created prior to the 1970s.5 Notable examples were: the Commonwealth Employees Compensation Tribunal; the War Pensions Entitlement and Assessment Appeals Tribunals; and, the Taxation Boards of Review. Merits review processes were also created under a host of other individual legislative schemes. They included: air navigation boards of review; a Specialist Recognition Appeal Committee under the National Health Act 1953; and, the Minister or departmental secretary under schemes regulating broadcasting, copyright, customs, social security, occupational licensing, and grant determination.6

26. The general picture emerging was of a system that was: uncoordinated; had grown as a response to the pressures felt in particular areas of administration; contained many gaps and anomalies; and, was not easily understood by the general community.

27. At the same time, administrative law reform activity in other jurisdictions drew attention to the options for change. In the United Kingdom, there was a developing framework of administrative law, based on the courts, tribunals, a Parliamentary Commissioner for Administration, and a Council on Tribunals.7 A landmark development that attracted attention in Australia was the report in 1957 of the United Kingdom Committee on Administrative Tribunals and Enquiries ('Franks Committee').8 The legislation which resulted from that report, the Tribunals and Inquiries Act 1958 (UK), established a Council on Tribunals to: monitor the structure and operation of administrative tribunals; create some minimum uniform standards for tribunals; and, impose upon certain tribunals an obligation to provide reasons for decision.

28. Administrative law reform had also been occurring in New Zealand, notably by the creation of an Administrative Division of the Supreme Court in 1968, and the appointment of an Ombudsman in 1962.9

29. Between 1971 and 1974, five of the Australian States took similar action to create Ombudsmen or Parliamentary Commissioners.10 Reform proposals of a different kind had also been made in Victoria. Two reports in 1968, from the Victorian Statute Law Revision Committee and the Chief Justice's Law Reform Committee, proposed the creation of: a general administrative tribunal; an Ombudsman; and, a reformed system of judicial review.11 Academic and judicial commentators in Australia had also spoken in favour of administrative law reform.12

30. The appointment of the Kerr Committee in 1968 marked the first comprehensive review of Commonwealth administrative law mechanisms. In its landmark report in 1971, the Committee drew attention to the steady development of a vast range of administrative discretions that could be exercised in a way that detrimentally affected the life, liberty, property, livelihood or other interests of a person.13

31. The Committee considered that established mechanisms were unable to adequately correct administrative errors and to ensure justice for the individual. It was said that: the principal reliance on parliamentary and judicial review was inappropriate; the remedies and principles for judicial review were unduly encumbered by technicalities; the Australian pattern of administrative tribunals was ad hoc; and, access to review was often blocked by cost, official secrecy, and privative clauses.14 The Committee concluded that:

... it is highly desirable to encourage in Australia a comprehensive system of administrative law ... which is essentially Australian and which is specially tailored to meet our own experience, needs and constitutional problems.15

32. The major theme underlying the report of the Kerr Committee was the need to develop a comprehensive, coherent and integrated system of administrative review. While the Committee did not spell out the concepts or principles which should underpin the new system, the major pillars were clear enough from its recommendations. Among them was the need for a system of administrative review to be: comprehensive; accessible by the public; inexpensive; focused on substantive and not procedural issues; and, based upon adequate disclosure of, and access to, information.

33. In one respect, the Committee was firm about the major plank of the system it envisaged. The creation of an expanded framework for the review of decisions on their merits was treated as a central requirement. The Committee contended that:

The basic fault of the entire structure is, however, that review cannot as a general rule ... be obtained "on the merits"—and this is usually what the aggrieved citizen is seeking.16

34. The Kerr Committee examined three options for expanding the framework for merits review—conferring the function on:

a court;

specialised tribunals; or

a general administrative review tribunal.

35. The Committee preferred the latter option, noting two advantages in particular: many areas of decision-making would not justify the creation of a specialist tribunal; and, creation of a general tribunal was preferable to the proliferation of specialist tribunals.17 It was this recommendation that led to the establishment of the AAT. The Committee nevertheless envisaged that the creation of specialist tribunals would be justified in special circumstances where the appropriate expertise did not exist in a general tribunal.18

36. The Kerr Committee considered the functions of the United Kingdom Council on Tribunals to be a useful starting model when determining the role of the proposed body. The Council on Tribunals had the following functions:

... to keep under review and to report on the constitution and working of certain scheduled tribunals; to consider and report on such particular matters as may be referred to the Council under the Act United Kingdom Tribunals and Inquiries Act 1958] with respect to tribunals other than courts whether or not specified in the schedule; and to consider and report on such matters as may be referred or as the Council may determine to be of special importance, with respect to administrative procedures involving or which may involve the holding by or on behalf of a Minister of a statutory inquiry.19

37. The Committee considered that in order to achieve and maintain a coherent overall reform of Australian administrative review, a supervisory body would be needed to oversee implementation of that reform and to monitor the operation of the new system. Having examined administrative review mechanisms in a range of other jurisdictions and Australian constitutional and other local factors, and given the broad policy reforms envisaged, the Kerr Committee decided that a broader role than that played by the Council on Tribunals was warranted for the proposed Australian Council:

A final point of some substance emerges from the overseas material, namely that whatever system of administrative law is adopted there is a need for a high level administrative authority to supervise the system. We are attracted by the precedent of the United Kingdom Council on Tribunals and have reached the general conclusion that a Council along similar lines will be needed in Australia. However, for a number of reasons ... we have come to the conclusion that the Council appropriate for Australian conditions will need to be of a different kind and with wider and different powers.20

38. One important function that the Committee saw the proposed Council as undertaking was to determine whether administrative discretions should be subject to merits review and, if so, whether the proposed general administrative review tribunal or a specialist tribunal should conduct that review:

Once it is decided to have a general administrative review tribunal, an important function which a body similar to the Council on Tribunals could well perform could be to examine the range of existing administrative decisions in order to consider whether review is desirable in particular cases and, if so, whether the review should be by the general administrative review tribunal or by a specialist tribunal. Such a Council would examine and make recommendations to the Government on other existing classes of administrative decisions which should be but are not at present subject to review on the merits, stating whether the review should be by a specialist tribunal or by the general tribunal. As new areas of administrative decision making are established a decision could be made at the outset whether there is to be review on the merits and, if so, by which type of tribunal and the legislation framed accordingly or the matter could be left to the Council for consideration and report...

We therefore recommend that there be a small permanent Administrative Review Council which would carry on continuous research into discretionary powers with special reference to the desirability of subjecting their exercise to tribunal review, either in a specialist or the general review tribunal.21

39. However, the Committee envisaged other functions also. In summarising its main recommendations and suggestions, the Committee said that the proposed Council:

... should be appointed to carry out duties in Australia similar to the duties carried out in the United Kingdom by the Council on Tribunals, particularly in relation to the supervision of procedures of specified Commonwealth administrative tribunals. This Council should also examine administrative discretions under Commonwealth statutes and regulations and recommend those in respect of which a review on the merits should be provided. Such a review on the merits in the case of the great majority of Commonwealth administrative decisions is not now available and, in the view of the Committee, should be available in appropriate cases. Detailed research, examination and policy decisions will be necessary to determine in what cases an opportunity should be given to citizens to appeal against an administrative decision on the merits.22

In addition to its powers as mentioned in the previous paragraph the Administrative Review Council should consider and make recommendations as to the procedures of tribunals.23

We recommend that, as a general rule, privative clauses should not be retained in Commonwealth legislation and the Administrative Review Council should consider and make recommendations as to the privative clauses, if any, which should be retained.24

40. The Kerr Committee anticipated that there was a need for more detailed research on Australian review and government before its proposed new system was established.25 Two further inquiries were accordingly established.

The Bland Committee

41. The Committee on Administrative Discretions ('Bland Committee'—named after Sir Henry Bland, the Chairman) issued two reports in 1973: an interim report examining the Kerr Committee proposal for an Ombudsman; and, a final report examining the proposals for administrative review.26

42. The final report of the Bland Committee contained a thorough analysis of the existing Commonwealth framework for administrative review. Aspects of that framework that drew adverse comment from the Committee were: the lack of any consistent pattern for administrative review; the inexplicable diversity among tribunals concerning their constitution and procedures; the frequent and inappropriate conferral of adjudicative jurisdiction upon the High Court and other courts; and, the scant provision for external review of decisions concerning social security, welfare, customs, excise, and immigration, by contrast with the more generous facility for external review of professional, occupational and entrepreneurial regulation.27

43. In relation to the Kerr Committee's proposal for an Administrative Review Council, the Bland Committee took the view that it had already carried out the functions that the Kerr Committee had proposed for the Council. In particular, it had, among other things, identified the discretionary powers which should be subjected to tribunal review. The Bland Committee also proposed that new legislation should specify: provisions in respect of which there should be review; that unless there were overriding considerations, no further tribunals be established; and, that there should be adherence for the future to the Committee's uniform code of processes and procedures 'unless overriding considerations demand some ad hoc qualification'. The Committee recommended that the Parliamentary Counsel should have a role in aid of this.28

44. The Bland Committee also proposed that there should be 'a Committee to study existing administrative discretions with the object of over-sighting progress with narrowing their scope or eliminating them altogether'.29 That Committee would have a Chairman 'distinguished for his senior administrative experience and his interest in administrative law', and the following members: the President of the General Administrative Tribunal; the First Parliamentary Counsel; the Ombudsman; and, one other member 'being a person versed in the discipline of administrative law'.30

45. The Committee would report annually to Parliament on a variety of matters, including: particulars of tribunals established during the year and departures from the Bland Committee's uniform code; progress made in narrowing discretionary powers; 'the general manner in which tribunals have functioned' in relation to aspects such as membership and powers and procedures; and, 'such other matters as the Committee sees fit relating to the current and future operation of the process of review of administrative discretions'.31

The Ellicott Committee

46. The second inquiry, by the Committee of Review of Prerogative Writ Procedures ('Ellicott Committee'—chaired by Mr RJ Ellicott, QC, then the Solicitor-General of the Commonwealth) examined the Kerr proposals for a reformed system of judicial review. The Ellicott Committee also reported in 1973.32

47. This Committee was established to review the prerogative writ procedures available in the courts. It was primarily concerned with judicial review, and it distinguished this area from review of decisions on their merits, which in many cases would not constitute an exercise of judicial power. It noted, but did not comment on, the Kerr proposal for an Administrative Review Council.33

48. The Ellicott Committee endorsed the view that the state of the law relating to judicial review of administrative action was technical and complex and in need of reform, simplification and legislative statement.34

Elements of the Commonwealth System of Administrative Review

Introduction

49. The following section describes, in broad outline, the main elements of the Commonwealth administrative review system that resulted from (or, in the case of the FOI Act, came after) the inquiries discussed in the previous section.

The Administrative Review Council

50. The Administrative Review Council was established by the Administrative Appeals Tribunal Act 1975 ('AAT Act') to perform broadly the sorts of functions envisaged by the Kerr Committee. The Attorney-General announced the appointment of the first Council on 12 November 1976. It had nine members with the intention that the Ombudsman would join the Council once an appointment to that office was made. The Council held its first meeting on 15 December 1976.

51. The Council's role is to monitor and provide advice to the Government in relation to Commonwealth administrative review. The need for that monitoring role arises, in part, from the nature of the Commonwealth administrative review system, which includes many review bodies that perform different but complementary review functions. The Council maintains the integrity of the whole system by ensuring, as laws and government decision-making processes change over time, that the various administrative review mechanisms continue to perform appropriate, effective and complementary functions.

52. This is principally achieved by examining existing and new administrative decision-making powers contained in Commonwealth legislation, to see whether a right of review should be available in relation to the exercise of those powers. The Council also conducts larger projects that deal with broader issues of change, such as: the move towards corporatisation and contracting out of government services; and issues to do with the provision of assistance and advice concerning administrative review.

Reformed judicial review

The AD(JR) Act—simplified judicial review

53. The AD(JR) Act implements the similar proposals of the Kerr and Ellicott Committees for a single enactment to: codify the principles of judicial review; reform the procedures for commencing a judicial review proceeding; confer supervisory jurisdiction upon a specialist Commonwealth superior court (now the Federal Court); and, create a right to the reasons for a decision subject to review.

54. The practice and procedure relating to judicial review at common law were arcane and complicated. The AD(JR) Act was substantially designed to overcome those difficulties.

55. In his Second Reading Speech on the Bill, the Hon R J Ellicott QC, then Attorney-General, outlined the function of judicial review as follows:

Judicial review by the Federal Court of Australia will not be concerned at all with the merits of the decision or action under review. The only question for the court will be whether the action is lawful, in the sense that it is within the power conferred on the relevant Minister or official or body, that prescribed procedures have been followed and that general rules of law, such as conformity to the principles of natural justice, have been observed. The court will not be able to substitute its own decision for that of the person or body whose action is challenged in the court. It will be empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with the law. It will also be able to compel action by a person or body who has not acted, but who ought to have done so.35

56. The remedies provided in the AD(JR) Act largely replicated those already existing in the common law, but were made more easily accessible in most cases.

57. The common law developed special public law remedies because the available private law remedies were not capable of adequately dealing with unlawful administrative action. For example, where a government agency exceeded its power, a remedy was required that would invalidate the action taken. The main public law remedies that were developed by the common law for this purpose were the writs of certiorari, prohibition and mandamus. Later, the equitable remedies of declaration and injunction were used by the courts to supplement the public law remedies. As noted, the ADJR Act replaced all these remedies with a reformed and simplified procedure for commencing a judicial review action.

Scope of the AD(JR) Act

58. There are two dimensions to the scope of judicial review: there is the range of matters with which judicial review is concerned; and, there is the range of bodies and actions that are subject to judicial review.

59. First, in respect of the range of matters with which judicial review is concerned, the AD(JR) Act, in section 5, provides a useful checklist of the grounds of judicial review. They may be summarised as:

that a breach of the rules of natural justice has occurred;

that procedures that were required by law to be observed were not observed;

that the person who purported to make the decision did not have jurisdiction to make the decision;

that the decision was not authorised by the enactment in pursuance of which it was purported to have been made;

that the decision involved an error of law;

that the decision was induced or affected by fraud;

that there was no evidence or other material to justify the making of the decision; and

that the making of the decision was an improper exercise of the power conferred, by reason that an irrelevant consideration was taken into account, a relevant matter was not considered, the power was exercised for an unauthorised purpose, the point was exercised in bad faith, the decision-maker acted at the direction or behest of another person, the decision-maker applied a rule or policy without regard to the merits of the decision, the exercise of power was so unreasonable that no reasonable person could have so acted, the result of the exercise of power was uncertain, or there was otherwise an abuse of power; or

that the decision was otherwise contrary to law.

60. The preceding list specifies the requirements of proper decision-making.

61. As for the range of bodies and actions for which judicial review applies, judicial review under the AD(JR) Act is available in respect of:

... a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1.36

62. Although there is not space in this overview for a detailed analysis of the ambit of the Act,37 it is worth noting that the main constrictions on the breadth of the AD(JR) Act are that for a "decision" to be subject to review it:

must be substantive, in the sense that it has the quality or character of finality38

must be made under an enactment;

must be of an administrative character;

cannot be one made, or to be made, by the Governor-General; and

cannot belong to a class of decisions excluded by Schedule 1 to the Act.

63. There is also some scope under the AD(JR) Act to seek judicial review of "conduct" engaged in for the purpose of making a decision. This can extend to interim or procedural matters, but only where it is serious enough to taint the validity of the administrative process.

A general right to obtain reasons for decisions

64. The AD(JR) Act also effected a substantial reform to the rights of individuals entitled to judicial review. The Act provides such individuals with a right to have the decision-maker provide, upon request, a written statement of the reasons for a disputed decision.

65. This right arises in relation to decisions that are within the scope of the Act, regardless of whether a person proposes to challenge the decision or not. No similar obligation to provide reasons exists at common law. The then Attorney-General, the Hon R J Ellicott QC, explained the rationale behind this reform in his Second Reading Speech:

... a person who is aggrieved by a decision usually has no means of compelling the decision-maker to give his reasons for the decision or to set out the facts on which the decision is based. Lack of knowledge on these matters will often make it difficult to mount an effective challenge to an administrative decision even though there may be grounds on which that decision can be challenged in law. Accordingly, one of the principal elements of the present Bill is a provision that will require a decision-maker to give to a person who is adversely affected by his decision the reasons for that decision and a statement of findings on material questions of fact, including the evidence or other material on which those findings were based...

No longer will it be possible for the decision-maker to hide behind silence.39

66. In essence, the objective of the reasons requirement is to make judicial review more effective. Given that it is undesirable to have unlawful decisions stand unchallenged, the reasons requirement assists affected members of the community in seeking judicial review. By bringing decision-making into the open, the procedure also encourages better decision-making and makes decision-makers more accountable. In its 1991 report on this subject, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, the Council noted a special income tax ruling in which the Commissioner for Taxation said that, from the point of view of good administration, the obligation to provide reasons upon request is aimed at:

stimulating the decision-maker to consider carefully the lawfulness and correctness of the decision to be made in the circumstances and thereby improving the quality of decision-making; and

ensuring that decision-making rests on a rational foundation by stimulating the decision-maker to identify and formulate the reasons which motivate the decision.40

67. The obligation to provide reasons is subject to two major qualifications.41 Any decisions in a class of decisions included in Schedule 2 to the Act are exempt from the reasons requirement. Decisions exempted by Schedule 2 include, for example, decisions of a range of authorities in the course of their commercial activities, and many personnel management decisions.

68. The second qualification on the obligation to provide reasons appears in section 13A of the AD(JR) Act. That section removes the requirement to include in a statement of reasons any information about a range of matters such as: personal or business affairs of another person; information supplied in confidence; or, information the publication of which would reveal a trade secret.

Administrative Review Tribunals

Scope of the AAT Act

69. The AAT Act implemented the Kerr and Bland Committee proposals for the creation of an independent general administrative appeals tribunal, to exercise a jurisdiction that was both an extension to, and a replacement of, existing arrangements.

70. There was a similar philosophy of administrative review shared by both Committees, though their detailed proposals differed in some respects.42 The AAT Act struck a balance—opting, for example, for the Kerr proposal that the President of the AAT be a judge (although the Act originally provided that all presidential members should be judges), and, modifying the Bland proposal for three different tribunals by creating a single tribunal with three divisions (General Administrative, Medical Appeals, and Valuation and Compensation).

71. The main objective of the AAT Act was:

... to establish a single independent tribunal with the purpose of dealing with appeals against administrative decisions on as wide a basis as possible.43

72. That is, the reform effected by the AAT Act concerned the efficient, integrated provision of external merits review, and involved establishing a presumption that people affected by government decisions should be able to obtain review of those decisions on the merits.

73. Neither the Kerr Committee nor the Bland Committee articulated comprehensively the benefits of merits review. Mostly the objective was perceived as the correction of individual administrative errors, and the creation of an independent machinery for reconciling the tension inherent in securing justice to the individual while safeguarding administrative efficiency and ensuring the lawfulness of the administrative process. Whether a wider impact on government would ensue was a matter only hinted at:

If as a result citizens look more critically at and have the right to challenge administrative decisions, this should stimulate administrative efficiency. Our proposals, we believe, reconcile basic ideas of justice, acceptance of the wide and growing power of the administration and efficient and fair exercise of that power in a democratic society.44

74. The tone was similar in the parliamentary speeches made in support of the new reforms. While the creation of the AAT was described as a 'significant milestone'45 and a 'momentous event',46 the description of the benefits was sparing.

75. It has been in later writings, which evaluate the performance of the AAT and other merits review tribunals, that elaboration of the benefits of merits review has been undertaken. Benefits that are typically mentioned include:

the role of tribunals in clarifying the meaning of obscure legislative provisions;

ensuring that administrators honour legislation according to its terms;

furthering consistency in the administration of legislation;

focusing attention on the accuracy and quality of agency manuals and guidelines;

enhancing the quality of reasons for decisions, and providing an opportunity for the full and open consideration of issues of major importance;

76. A distinguishing theme in the list of benefits is the suggestion that merits review produces not only better decisions, but also better decision-making. That is, a review decision may have an immediate effect, not only on the decision under review, but also in correcting erroneous decision-making practices, or highlighting misconceptions that arise within administration. In an incremental fashion, review can also produce more fundamental effects, such as: higher quality decision-making; an altered commitment to reasoned decision-making; improved program development; and, administrative and legislative reform.

77. The Council took the following view in its Better Decisions report of the objectives of the merits review system as a whole:

In the Council's view, the overall objective of the merits review system is to ensure that all administrative decisions of government are correct and preferable.

Achieving this objective involves more than ensuring that the correct and preferable decision is made in those cases that come before review tribunals. It also means that all persons who might benefit from merits review are informed of their right to seek review and are in a position to exercise those rights, and that the overall quality of agency decision making is improved. This overall objective therefore incorporates elements of fairness, accessibility, timeliness and informality of decision making, and requires effective mechanisms for ensuring that the effect of tribunal decisions is fed back into agency decision-making processes.

In seeking to meet this overall objective, the Council considers that the merits review system should have several specific objectives. They are:

providing review applicants with the correct and preferable decision in individual cases;

improving the quality and consistency of agency decision making—there are two main ways this can be achieved:

by ensuring that particular review tribunal decisions are, where appropriate, reflected by agencies in other similar decisions (referred to in this report as the 'normative effect'); and

by taking into account review decisions in the development of agency policy and legislation

providing a mechanism for merits review that is accessible (cheap, informal and quick), and responsive to the needs of persons using the system; and

78. Whereas judicial review under the AD(JR) Act is available in relation to administrative decisions generally, merits review by the AAT (and by other merits review tribunals) is available only where statutes make provision for it. As new decision-making powers are conferred on administrators, the question whether those powers should be subject to merits review arises. The Council has a key role in relation to the scope of merits review. This role was seen as important by the Kerr Committee:

It is for this reason that the Administrative Review Council looms so large in our scheme. There will always be some administrative decisions from which Governments will not be prepared to allow appeals; there will be some which Governments will probably wish to be protected by privative clauses; there will be some which involve important policy considerations which Governments will be reluctant to let out of their own control; there will be some in respect of which only limited appeal or appeal to specialist tribunals will be permitted. We recognise this situation and have accordingly avoided a sweeping approach to the matter of administrative review. On the other hand, we have taken the view that it is desirable to provide for review of decisions affecting citizens' rights whenever this is possible and where appropriate by a general Administrative Review Tribunal...

The definition of the area of permitted review is a function of government and in this task the Administrative Review Council would assist the Government.49

79. The Council has published guidelines for the identification of decisions as suitable for review on the merits.50 These guidelines reflect the Council's accumulated experience and are refined and added to over time. At the core of these guidelines is the proposition that a decision made in the exercise of a power conferred by an enactment is generally suitable for review on the merits if the interests of a person will be, or are likely to be, affected by an exercise of the power.51

80. In clarification of this test, the Council notes that the following features do not, without more, make a decision unsuitable for merits review:

Factors lying in the nature of the decisionDecisions affecting the national sovereignty or prerogative power.Decisions made, or reviewed, in geographically isolated places.Decisions that are legislatively unstructured.Decisions made by reference to government policy.

Factors lying in the nature of the decision-makerThe decision-maker is an expert, or requires specialised expertise.The decision-maker is of a high status.

Factors lying in the effect of the decisionReview may lead to the publication of reports affecting individuals.Large numbers of people may take advantage of review.There is potential for the original decision to be subject to judicial review.

81. Complementing this list, the Council notes a range of factors that might indicate that the decision should not be subject to merits review, including:

Factors lying in the nature of the decisionPreliminary or procedural decisions.Decisions to institute proceedings.Decisions allocating a finite resource between competing applicants.Decisions relating to access to parliamentary or judicial records.Policy decisions of a high political content.Decisions of a law enforcement nature.Financial decisions with a significant public interest element.

Factors lying in the effect of the decisionDecisions to delegate a power or to appoint a person to undertake a specified function.Recommendations to ultimate decision-makers.Decisions where there is no appropriate remedy.

Factors lying in the costs of review of the decisionDecisions involving extensive inquiry processes.Decisions which have such limited impact that the costs of review cannot be justified.

Other tribunals

82. As noted earlier, there are now other Commonwealth review tribunals that have a specialised jurisdiction—the SSAT, the VRB, the MRT and the RRT. Some of these tribunals provide final review on the merits, while the decisions reviewed by others are able to be reviewed on their merits again, by the AAT.

83. The Commonwealth system of merits review tribunals has been reviewed by the Council. The evolution of that system is described below as an example of the Council's 'whole of government' approach to administrative review issues.

Developments within the tribunals system

84. This section of the overview concerns the developments in the administrative tribunals system subsequent to those described above. The growth of the AAT, the policy issues involved in the creation of new tribunals, and the proposals for reform of the present review tribunal system, are all described. These developments formed part of the background to the Council's report to the Government on this subject, Better Decisions: review of Commonwealth Merits Review Tribunals (1995).

Growth in the AAT

85. Following the establishment of the AAT some existing merits review tribunals were abolished, notably the Commonwealth Employees Compensation Tribunal, the Repatriation Review Tribunal, and the Taxation Boards of Review. Many review procedures were subsumed in the new AAT structure, leading over time to a steady growth in the range of jurisdiction exercised by the AAT. At the time of its enactment in 1975, the AAT Act listed in a Schedule over 80 categories of reviewable decisions, covering occupational licensing (for example, patent attorneys and tax agents), customs, and broadcasting regulation. By 1999, appeals to the AAT could be made under more than 325 separate Commonwealth enactments.

86. Areas of jurisdiction that have been added since 1976 include: freedom of information; social security; taxation; securities regulation; and, compensation for land acquisition. The divisional structure of the Tribunal has been adjusted to accommodate some of these changes.52 In many of those areas, the AAT is the sole option for external merits review. For example, the Security Appeals Tribunal (which was responsible for reviewing decisions regarding security assessments of Commonwealth employees) was incorporated into the AAT.53

Creation of new tribunals

87. There are now several other Commonwealth administrative tribunals and merits review structures that are integrated with, or operate alongside, the AAT. They include tribunals operating in the following areas: social security, veterans' affairs, and immigration.

The Council's views

88. The Council reported to the Government following completion of its inquiry into the Commonwealth system of merits review tribunals. In Report No 39, Better Decisions: review of Commonwealth Merits Review Tribunals (1995), the Council made a range of recommendations concerning the: procedures; membership; and, operations of tribunals; and, the structure of the tribunal system as a whole. A short summary of the Better Decisions report is included in the Council's Twentieth Annual Report 1995-1996, at paragraphs 2.5-2.20. In broad terms, the Council's recommendations (of which there were more than 100), aimed to:

improve access to tribunals by people affected by government decisions, including by making tribunals easier for those people to use;

improve the effectiveness of the membership of tribunals, by establishing thorough selection processes that ensure credibility and bring to tribunals an appropriate diversity of skills and experience among members;

improve government decision-making generally; and

enhance each of the above aims by structuring the system appropriately to balance the need for procedures tailored to users' needs with the need for simplicity and better means to deal with significant cases.

89. The Council identified general improvements in government decision-making as a significant objective of merits review and one requiring further attention. Promotion of this objective involves a productive interplay between tribunals and government agencies. Part of this means improved communication between tribunals and agencies along with relevant training. Part of it also means encouraging appropriate responses to tribunal decisions raising issues of general significance.

90. On 3 February 1998 the Attorney-General announced that legislation to establish a single Administrative Review Tribunal ('ART') would be introduced. The amalgamation of the existing Commonwealth merits review tribunals should provide an opportunity to make improvements to the current merits review system. It is anticipated that the ART should be operating by early 2001.

The Ombudsman

91. The Ombudsman Act 1976 ('Ombudsman Act') reflects more the revised proposals of the Bland Committee. The Kerr Committee had suggested a different title—General Counsel for Grievances—and had envisaged a body with a more active function, to proceed on behalf of a complainant to a court or tribunal to challenge a decision, and to intervene in the review proceedings of other bodies.

92. The concept of an ombudsman is of ancient origin, dating back at least to Roman times. It was rejuvenated in 1809 when the Office of Ombudsman was created in Sweden. The office has been defined as:

... an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against Government agencies, officials, and employees, or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports.54

93. The Ombudsman ensures that decisions are made fairly, rationally and efficiently. The process offered by the Ombudsman also provides a facility for interested parties to participate in government decision-making, and makes it easier for government decisions to be scrutinised.

Scope of the Ombudsman Act

94. Before looking at the agencies to which the Ombudsman Act applies, it is useful to see what the Ombudsman is authorised to do.

95. The Ombudsman's primary jurisdiction is to investigate action, either following the making of a complaint or of his or her own motion, which relates to 'a matter of administration' taken by a department or a 'prescribed authority'.55 The Ombudsman can and often will resolve a complaint through a process of conciliation, but when this is not possible, the Ombudsman has the capacity, through a report to the concerned agency, to request remedies. Section 15(1) of the Ombudsman Act sets out the occasions that may give rise to the Ombudsman reporting action to the department or prescribed authority. These occasions include circumstances in which:

the action:

appears to be contrary to law;

was unreasonable, unjust, oppressive or improperly discriminatory;

was in accordance with a rule of law but the rule is unreasonable, unjust, oppressive or improperly discriminatory;

was based either wholly or partly on a mistake of law or of fact;

was otherwise, in all the circumstances, wrong; or

in the course of taking the action, a discretionary power had been exercised for an improper purpose or on irrelevant grounds.

96. If the department or prescribed authority does not undertake adequate action to correct the matter in the Ombudsman's report, the Ombudsman may, in a further report, inform the Prime Minister.56 The Ombudsman may also, as a last resort, report the matter to the Parliament.57

97. Turning to the scope of the Ombudsman Act, the Ombudsman's jurisdiction covers departments of state of the Commonwealth and prescribed authorities. The term 'prescribed authority' includes bodies of any of the following descriptions:58

a body, whether incorporated or not, established under an enactment for a public purpose, other than:

an incorporated company or association;

a body that has the power to take evidence on oath or affirmation and that may be constituted by a Justice or judge of a court created by the Commonwealth Parliament;

a body declared by the regulations not to be a prescribed authority; and

a Royal Commission;

any other body, whether incorporated or not, declared by the regulations to be a prescribed authority, being:

a body established by the Governor-General or a Minister; or

an incorporated company over which the Commonwealth is in a position to exercise control;

a person holding an office established by an enactment, other than:

an office whose duties the person performs as an employee of a department or as a member of a prescribed authority;

an office as member of a body;

an office established by an enactment for the purposes of a prescribed authority but any action by such an office is deemed to be taken by the department, body or authority concerned; or

an office declared by the regulations to be one such that its holder does not become a prescribed authority; or

a person performing the duties of an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority, being an appointment made by the Governor-General or a Minister, other than an appointment made under an enactment.

98. However, the Ombudsman is specifically excluded from investigating action taken:59

by a Minister;

by a Justice or judge of a court;

by a magistrate or coroner of a Territory;

by any body or person in relation to persons employed in a department or prescribed authority in respect of that employment; and

in relation to the appointment of a person to a statutory office.

Later reforms

Freedom of information

99. The Freedom of Information Act 1982 provides the legal framework for public access to documents held by the Australian Government. For information about the Freedom of Information (FOI) system please refer to the FOI page on the website of the Office of the Australian Information Commissioner. For information about making a FOI request to the Attorney-General's Department, please refer to the FOI page on the website of the Attorney-General's Department.

1 In the leading authority on the role and function of the AAT in undertaking merits review of decisions - the decision of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 - Chief Justice Bowen and Justice Deane said, at page 589, that the question for the determination of the AAT was whether the decision was the 'correct or preferable one' on the material before the Tribunal. In the Council's view, their Honours intended to convey the meaning that a decision must be legally correct, but that if there is a range of decisions that could be made, all of which would be correct, the decision-maker has a choice as to the preferable decision. However, the phrase 'correct or preferable' may give the impression that a decision may be the preferable decision, even though it is not correct. For this reason, the Council prefers the phrase 'correct and preferable'.

2 Report No 35 (1992).

3 See also section 75(iii) which gives the High Court an original jurisdiction in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.

4Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971, ('Kerr Report'), CGPS 1971, paragraphs 20, 21, 42-58. For a retrospective analaysis of the main themes in the Report, see R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law—At the Twenty-Five Year Mark (1998, CIPL)

5 For a list see Appendix E of the Final Report of the Committee on Administrative Discretions, Parliamentary Paper No 316 of 1973 ('Bland Committee Final Report').

41 In its Report No 33, Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons (1991), the Council considered that decisions made by bodies established under an Act of Parliament (other than the Corporations Law) should not be exempted from the scope of the reasons requirement but that provision should be made in section 13A to protect information the release of which would, or could reasonably be expected to, adversely affect an authority of the Commonwealth in respect of its competitive commercial activities: see paragraphs 168-173.

43 Second Reading Speech of the Hon K E Enderby, QC, for the Administrative Appeals Tribunal Bill 1975 in the House of Representatives, Parliamentary Debates 29th Parliament, 1st Session at p1186, 6 March 1975.

44 Kerr Report, paragraph 364. Note too how the benefits of merits review were if anything down-played by the Kerr Committee: 'the purpose of extending the scope of administrative review is not to permit the review of decisions settling government policy or the change of established administrative policies but to permit the correction of error or impropriety in the making of administrative decisions affecting a citizen's rights' (paragraph 354). See too the Bland Committee Final Report, paragraph 228.

50 Administrative Review Council, Eleventh Annual Report 1986-87 at chapter 9, and updated in the Seventeenth Annual Report 1992-93. The Guidelines were last updated in the Twenty-second Annual Report 1997-1998, and are now published in the booklet:

What decisions should be subject to merits review?

51 The importance of merits review was emphasised in a Discussion Paper circulated by the Hon Jan Wade MP, Tribunals in the Department of Justice: A Principled Approach, October 1996. At point (F), page 10, the Paper states: 'There should be a presumption in favour of merits review of all administrative decisions. There has been criticism of merits review by some bureaucrats since the inception of the Commonwealth Administrative Appeals Tribunal in 1975, but the importance of merits review and the contribution it makes to better decision making are evidenced by the ever increasing jurisdiction of that Tribunal, a trend that shows no sign of abating.'

53 This occurred under the provisions of the Law and Justice Legislation Amendment Act 1995.

54 The definition is from a 1974 resolution of the International Bar Association, as extracted from the Report of the Senate Standing Committee on Finance and Public Administration, Review of the Office of the Commonwealth Ombudsman, AGPS, Canberra, 1991, page 5, which cited Rhodes K, The Ombudsman: Understanding the Concept, at page 7.